Refuge in Audacity?

It’s been a busy few weeks for me. In the past few weeks on the Diploma I’ve had 6 or 7 assessments, some written, some oral and some both. Street Law lessons have been great – and I was part of a ‘Day of Street Law’ at Kyle Academy in Ayr {Which I will be writing about in due course}, but they do, of course, take time. I also had a chance to talk to some aspiring Law students, answering their questions about Law and Law studentry – which also provided a nice reflection at the very end of my university life {and I’ll be writing about that too}. There’s also an election on – but that’s for another time. But over the past few weeks I have also had a secret…I have been genuinely afraid.
I have an unusual outlook on things sometimes. This has always been the case. It’s not intentional, and it’s not a cultivated personality trait – but I have a natural inclination to try unusual approaches when faced with an unusual challenge. And it’s not that I see my approach to things as unusual. I think (at the time at least) that it is eminently sensible and has advantages over other people’s – I wouldn’t do it otherwise. It’s other people who tell my my approach is unusual.

A lot of the Diploma at Glasgow University is about standing up and saying things. It’s definitely a strength of Glasgow’s DPLP, since that’s what most lawyers do. I don’t mind giving speeches and talking to people. I do it all the time and know that most of the time I do well with them. My fear was not about giving a speech in front of people. They always say “Don’t talk about exams once you’ve done them. It’ll only make things worse.” This, I now realise, is excellent advice to be followed at all times.
One assessment I had recently (for my Human Rights class) was a mock employment tribunal. A teacher had been fired by the Local Authority for making several comments about certain pupils in private messages on Facebook, which had since entered the public domain. One message in particular was about a girl who had been causing him problems and he said that she “…should just wait until the prelims :-)”. He was arguing that this statement was protected under Article 10 of the ECHR (‘the right to free expression’). In my role, representing the Local Authority trying to uphold the dismissal, I had to show that this kind of statement wasn’t protected under Article 10.

The easiest way for me to do this, I felt, was to show that it was to show that this was a threat to the girl’s “rights and reputation” in that there was an implied threat to mess up the student’s prelim mark, just to get back at her. Nothing unusual in this so far – a conventional approach. The only problem with this was that there is another way to read the teacher’s comment: This girl is stupid and I’m sure her prelim results will reflect that. I wanted to put forward a case that was stronger than just “but don’t you think I’m right”. I wanted to show that my interpretation was right and that the law was on my side. And I saw in that sentence an important point…THE SMILEY FACE.
Taken on its own the meaning was ambiguous – but why, then, include the smiley face? Did the smiley face lend the sentence another meaning, and offer additional weight to my side. I needed a case that showed that an otherwise innocent statement could be corrupted by the inclusion of an apparently separate, but still related, addition. It was only at the last minute a case jumped out at me. To me, it appeared to be brilliantly on point – it was a completely sensible choice. I was proud of myself remembering it. This pride lasted about 30 minutes.

The case of McAlpine v Bercow [2013] EWHC 1342 (QB) was my secret weapon. You may remember in 2013 that BBC Panorama aired a program alleging that a Tory Peer was at the centre of a Parliamentary paedophile ring. This program did not name the Peer (after taking legal advice). The BBC and the Panorama staff took pelters for it. Meanwhile, Sally Bercow (the Speaker’s wife) tweeted the following:

This tweet, on the face of it, is harmless. The phrase “Lord McAlpine” was, in fact, trending at the time Bercow tweeted. Asking why something is trending (i.e is being talked about) on twitter is quite normal. Before her death, “Thatcher” regularly trended and people often asked if she had died. The question itself is common. But, Lord McAlpine who was a Tory Peer and fit the description of the alleged paedophile, felt there was veiled suggestion in this tweet. He felt that the inclusion of “[innocent face]” added a nefarious intent added something not present in the question asked alone. He sued Bercow for defamation (libel as it is in England) and won. Specificlly, the court said that the inclusion of “innocent face” was a “stage direction”, asking readers of the tweet to:

“imagin[e] that they can see [Bercow’s] face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant’s case, but insincerely or ironically on the Claimant’s case) that she does not know the answer to her question.” [para. 24]

and further:

“There is no sensible reason for including those words in the tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question. [para. 84]

The words “innocent face” (which is as damn near as close to an emoticon as you can get – I don’t think an ‘innocent’ emoticon exists) are what hung her. The question of itself was genuine, but this appendage at the end got her. THIS was my case. OK it was English, and the law is slightly different up here in Scotland, but it was sound reasoning in an area where there’s quite a bit of cross-boarder sharing. Plus, it’s a case involving computers – where the law is severely lacking. At the very least, it was a nail (however formally shoogly) on which I can hand my legal jacket.

Come my assessment, I went through the rest of the case and came, lastly, to he “…just wait until her prelims :-)” part. I was one of the last assessments taking place and the rest of the class, having done their’s, were asked to stay and watch the others. I’m not a fan of this, but that’s the way they do it. I made my point like I would any other. The factual circumstances were important, so I explained the facts and took the points:

There was a highly publicised program on the BBC alleging a Tory Peer was a paedophile.

Lord McAlpine is a Tory Peer.

Sally Bercow tweeted what she did and included “[innocent face]” at the end of it.

The Court held that this inclusion was enough to change the meaning of the rest of the communication.

Therefore it was open to the tribunal to find that the teacher’s “:-)” prejudiced a sentence that could otherwise be interpreted innocently.

By doing so, it would be an threatened attack on the rights of others and so fall outwith Article 10 protection.

I finished my argument and thought I’d gone through it well. But then I could hear small titters behind me. This is not what I was expecting. But, I sat and listened to my opponent’s case. The marker made a comment (one many markers make after the oral assessments) that he had heard two interesting arguments – but (with some degree of irony) his facial expression suggested that he had found one more “interesting” that the other.
Our class developed a custom of forming a ‘jury’ after these hearings to decide the ‘outcome’. It didn’t affect the grade we got, but was just a discussion on the issues. This vote didn’t go well for me. When I joined the rest of those who had completed their assessments I asked some of them how they felt it went. Despite the Bercow case being only the last minute of my 6 minute submission, that was the only thing they highlighted. It wasn’t an argument anyone else representing the LA had made – not a case they’d brought in. And this got me worried.
One person thought it was “brave” I had mentioned the case. I sat through the next ‘hearing’ and they never made reference to the Bercow case either. I was now genuinely afraid that I had messed up this assessment BIG TIME. To me the point I was making could not be clearer. The classmates I spoke to weren’t so certain. At the time the marker had been smiling – but were those smiles meaning “Good approach. Solid judicial basis. He’s done his homework.” or “What on earth is this guy on about”?

Now, I was afraid.

The next few weeks were terrible for me. I hate failing. I have failed a test exactly twice in my life, and both of them were my driving test. It’s not a thing I cope well with. At the next few tutorials, before the grades were given out, reference was made to my Bercow case. None of them were mean-spirited, but there were a few jokes about it. I developed a standard response of “THAT CASE MADE A RELEVANT LEGAL POINT”…but few people seemed to accept this, and slowly, I wasn’t sure I did either.
Apparently, every time you remember something, you don’t actually remember the actual event, but the last time you remembered it. Slowly, certain things are exaggerated and, eventually, what you “remember” bears little resemblance to what actually happened. I remembered making a great argument…but was that actually what happened?

The fear was very real. Then, on Tuesday an e-mail went round letting us know the marks were out. I was in the Citizens’ Advice Bureau at the time, but managed to scurry away for a few minutes to log-in and check the grades. I took it very, very slowly. I saw the feedback (after taking 5 mins or so to scroll down to look at it)::

Turns out all the worrying was for nothing and that, in fact, the case did make a relevant legal point after all. The submission wasn’t meant to be humorous – my discussions involving alleged paedophilia rarely are – which is maybe a sign of the “what I think is serious, others think is silly” problem I have to work on, but if it worked in my favour I’m not going to complain.

So what’s the point in all this? You’ve read 1800 words (apologies) on a (possibly amusing) non-story. I thought I did something; worried I hadn’t; then found out I had. The point is that a few things hit home for me personally. I really have to get over my anxieties of losing. Motivation is good, yes, but expecting to win every time is only going to lead to disappointment. But at the same time, I maybe need to be a bit more confident in my ability to construct a case and not go into panic mode when its attacked. I imagine that, should litigation come calling, not everyone will agree with my point of view.
In the end, maybe I was just lucky. It’s entirely possible that on any other day, or given any other marker, they would have seen the Bercow argument as an unnecassary sidetrack. My opponent picked up on the reference in the case to paedophilia and ran with it, suggesting that I meant the teacher could be accused of the same (which given the wider circumstances of the scenario wasn’t that far-fetched). If she had gone for it, there’s a great chance should could have wrecked my credibility. But I was lucky…this time.